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CNET News.com - San Francisco,
13 September 2007

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LAPD may rehire celeb-obsessed

What: A former Los Angeles Police Department officer who liked to look up celebrities' personal information in confidential police databases says he was unjustly fired.

When: The California Court of Appeal, Second District, Division 8, rules on Wednesday.

Outcome: Ex-LAPD cop wins case and may get his job back.

What happened, according to court records and other documents:
Kelly Chrisman once was a Los Angeles police officer with a penchant for looking up celebrities in the department's confidential databases. Then he got fired. Now he may get rehired with back pay.

The story begins when Chrisman started dating a woman named Cynthia Truhan-Garvey, the ex-wife of former Los Angeles Dodgers star Steve Garvey and a former co-star with Regis Philbin on a New York morning show. When the relationship ended, she told the LAPD that her ex-boyfriend had beaten her. Chrisman was arrested, turned over to the sheriff, and then released. (The sheriff's department eventually concluded her supposed injuries were self-inflicted. Moreover, Truhan-Garvey had already been convicted for falsely claiming to be the victim of domestic violence.)

Truhan-Garvey also accused Chrisman of misusing department computers by looking up confidential information on celebrities. News reports from 2003 say his celebrity targets included Halle Berry, Pamela Anderson, Sharon Stone, Jennifer Aniston, Meg Ryan, Larry King, Cindy Crawford, Elle Macpherson and Sean Penn.

Truhan-Garvey also said Chrisman harassed her by finding her new phone number and address after they broke up. In 2003, USA Today reported that the city of Los Angeles paid $387,500 to settle her lawsuit, which said Chrisman made a hefty side income by selling information to supermarket tabloids. (He claimed he was asked to compile a map of celebrities' homes.)

In August 2003, the LAPD filed administrative charges against Chrisman for misuse of department computers over a stretch of time that lasted from 1993 to 2000. The information available to him included criminal histories, driving records, Social Security numbers, restraining orders and unlisted phone numbers.

Like other LAPD officers, Crisman had signed a statement (in his case, in October 1990) that said: "I agree to abide by and hereby acknowledge that I have received a copy of this operator security statement and have been informed of the following: ...Any person who intentionally and without authorization accesses any Department computer system, except in the scope of his or her employment, shall be guilty of a public offense...Any violation of Department policy or state law may result in disciplinary action which may result in dismissal and/or criminal prosecution as provided by law."

That seems straightforward enough: Any cop who misuses confidential police databases for any reason, including pleasure or profit, loses his job forever.

But it didn't turn out that way. Chrisman sued in January 2004, claiming the department had violated his rights, the prohibition against computer misuse was overly vague, and the statute of limitations prevented any surreptitious database searches from being used as evidence against him in disciplinary proceedings.

In legal filings, he's asked for an order "restoring appellant to his employment as a police officer with back pay and restoration of all benefits."

Under the Los Angeles city charter, the limitations period for noncriminal misconduct is "two years from the occurrence" and three years for criminal conduct. Because any unapproved computer searching was noncriminal, Chrisman argued, the two-year rule should apply.

The trial court disagreed with him, but a state appeals court parsed the language of the statute especially closely. It ruled that while Chrisman may have "had no legitimate purpose for that information," it was not technically hacking because he did have authority to access those databases.

The bottom line? Even though the appeals court said "it is undisputed that appellant was on duty when he misused department computers," Chrisman seems on track to get his old job back. The case was remanded to the LAPD with orders to reconsider his punishment.

Excerpt from the California state appeals court's opinion:
Appellant concludes the trial court therefore erred when it applied a three-year statute of limitations to find the counts were timely. We agree.

One cannot reasonably describe appellant's improper computer inquiries about celebrities, friends and others as hacking... Appellant's computer queries seeking information that the department's computer system was designed to provide to officers was misconduct if he had no legitimate purpose for that information, but it was not hacking the computer's "logical, arithmetical or memory function resources," as appellant was entitled to access those resources..

People v. Lawton (1996) cited by respondents illustrates the difference. In that case, the court affirmed a library patron's conviction under subdivision (c)(7) for "unauthorized access to a computer system." There, the patron used the library's public terminal which the library intended patrons to use to search only the library's electronic card catalog. The patron used the terminal, however, to "bypass security and penetrate levels of software not open to the public," and his offense lay in such bypassing and penetration. Appellant's misuse of the department's computers was different. He used them to get information to which he was entitled when performing his job, but retrieved it for nonwork-related reasons...

It is undisputed that appellant was on duty when he misused department computers. Respondents argue appellant was not, however, acting within the scope of his employment because he had no legitimate job-related reason for his computer inquiries. But, respondents define "scope of employment" too narrowly. They suggest it covers only legitimate job-related conduct, rendering acts that violated department rules outside the scope of employment.

Generally speaking, however, showing that an employee violated an employer's rules does not determine whether the employee acted within the scope of employment. For example, in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, the Supreme Court held that a police officer in uniform and driving a marked police car was acting within the scope of his employment when he pulled over a drunken driver but instead of arresting her, took her home and raped her...

Together these cases show that an employer's disapproval of an employee's conduct does not cast the conduct outside the scope of employment. If the employer's disapproval were the measure, then virtually any misstep, mistake or misconduct by an employee involving an employer's computer would, by respondents' reasoning, be criminal. For example, if an employer prohibited employees from logging onto the Internet to check their personal email, respondents' definition of scope of employment would make reading one's e-mail on company time a crime even where the employee read the e-mail on a computer regularly assigned to that employee. Surely, that was not the Legislature's intent in enacting subdivision (c)(7)...

The matter is reversed and remanded to the Los Angeles Police Department for reconsideration of its punishment of appellant based on his two years of misuse of the department computers, from March 29, 1999, to March 28, 2001. Appellant to recover cost on appeal.

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CNET News.com - San Francisco,13 September 2007

LAPD may rehire celeb-obsessed

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CNET News.com - San Francisco,
13 September 2007